Author Name:   sujay_ilnu

Article is About sec 45 of indian evidence act and what is the need for eaxpert evidence in certain specific fields like narco analysis and polygraph test...

Expert Opinion ( Sec-45)

Expert opinion is expressed by a person having specialized knowledge in a particular field based on his training, study and experience. The opinion must be wholly or substantially based on his expert knowledge and not influenced by the lawyers or clients who retain him. An expert is required to provide necessary scientific criteria for testing the accuracy of his conclusions on the basis of which the jury can form their own independent judgment. If an expert wishes to refer to a particular fact as the basis of his opinion then that fact must be corroborated by admissible evidence.[1]

Who can be called as an expert
Expert is a person having special knowledge of the subject about which he or she is testifying. The role of the expert witness is to assist and determine the issues in dispute by furnishing the court with scientific information, which is likely to be outside the knowledge and experience of judge. The person must gain the acceptance of the court and normally testify about facts rather than the law. The judge should ensure that the expert is qualified on the disputed issue and only relevant and reliable opinions are accepted from him/her. There is no threshold test in common law for the admissibility of expert evidence which takes into account its reliability and it is on the judge’s discretion to accept it or not.

In the modern world, expert evidence has come to play an important role in determining a casual link between conduct and the harm suffered. Expert witness can be appointed either by the consent of both parties or by the court. Their opinion is useful in both civil and criminal cases.

Elements of Expert Evidence-
In Makita (Australia) Pty Ltd v. Sprowles[2], Heydon JA summarised the applicable law in relation to the admissibility of expert evidence as an exception to the opinion rule . In summary , if evidence tendered as expert opinion evidence is to be admissible:

1. It must be demonstrated that there is a field of “specialized knowledge”.

2. there must be an identified aspect of that field in which the witness demonstrates that by reason of special training , study or experience , the witness has become an expert.

3. the opinion proferred must be “wholly or substantially based on the witness’s expert knowledge.

4. so far as the opinion is based on facts “observed” by the expert ,they must be identified and admissibly proved by the expert.

5. so far as the opinion is based on “assumed” or “accepted” facts , they must be identified and proved in some other way.

6. it must be established that the facts on which the opinion is based form a proper foundation for it, and the expert’s evidence must explain how the field of “specialized knowledge” in which the witness is expert ,and on which the opinion is “wholly or substantially based” applies to the facts assumed or observed so as to produce the opinion propounded.

Narco Analysis Test
The term Narco-Analysis is derived from the Greek word Narko which means anesthesia and is used to describe a diagnostic and psychotherapeutic technique that uses psychotropic drugs.[3]

A brief information about Narco Analysis test
In the Narco Analysis Test, the subject's inhibitions are lowered by interfering with his nervous system at the molecular level. In this state, it becomes difficult though not impossible for him to lie .In such sleep-like state efforts are made to obtain "probative truth" about the crime. Experts inject a subject with hypnotics like Sodium Pentothal or Sodium Amytal under the controlled circumstances of the laboratory. The dose is dependent on the person's sex, age, health and physical condition. The subject which is put in a state of Hypnotism is not in a position to speak up on his own but can answer specific but simple questions after giving some suggestions. The subject is not in a position to speak up on his own but can answer specific but simple questions. The answers are believed to be spontaneous as a semi-conscious person is unable to manipulate the answers.

Wrong dose can send the subject into coma or even result in death. The rate of administration is controlled to drive the accused slowly into a hypnotic trance. The effect of the bio-molecules on the bio-activity of an individual is evident as the drug depresses the central nervous system, lowers blood pressure and slows the heart rate, putting the subject into a hypnotic trance resulting in a lack of inhibition. The subject is then interrogated by the investigating agencies in the presence of the doctors. The revelations made during this stage are recorded both in video and audio cassettes. The report prepared by the experts is what is used in the process of collecting evidence. This procedure is conducted in government hospitals after a court order is passed instructing the doctors or hospital authorities to conduct the test. Personal consent of the subject is also required.

Other tests which are popularly used on the convict for extraction of truth, these are-
Polygraph Test-
It is an examination, which is based on an assumption that there is an interaction between the mind and body and is conducted by various components or the sensors of a polygraph machine, which are attached to the body of the person who is interrogated by the expert. The machine records the blood pressure, pulse rate and respiration and muscle movements. Polygraph test is conducted in three phases- a pretest interview, chart recording and diagnosis. The examiner prepares a set of test questions depending upon the relevant information about the case provided by the investigating officer, such as the criminal charges against the person and statements made by the suspect. The subject is questioned and the reactions are measured. A baseline is established by asking questions whose answers the investigators know. Lying by a suspect is accompanied by specific, perceptible physiological and behavioral changes and the sensors and a wave pattern in the graph expose this. Deviation from the baseline is taken as a sign of lie.

Status of Narco Analysis in India-
In India Narco Analysis test was in use before May 5,2010. In India, the narco analysis test was done by a team comprising of an anesthesiologist, a psychiatrist, a clinical or forensic psychologist, an audio-videographer, and supporting nursing staff. The forensic psychologist will prepare the report about the revelations, which will be accompanied by a compact disc of audio-video recordings. The strength of the revelations, if necessary, is further verified by subjecting the person to polygraph and brain mapping tests. Narco analysis was steadily being mainstreamed into investigations, court hearings, and laboratories in India. In many of high profile cases, such as those of the Nithari case and the Mumbai train blasts, suspects have been whisked away to undergo an interview drugged with the barbiturate sodium pentothal. On May 5, 2010 the Supreme Court of India held that narco, polygraph and brain mapping test violate article 20(3) of the Constitution[4].

Section 45 of the Indian Evidence Act, 1872 –
“When the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impression, the opinions upon that point or persons especially skilled in such foreign law, or of science, or art, or as to identity of handwriting or finger impressions are relevant.”

Some Notable Events & Cases of Narco Analysis in India-
1. In a 2006 judgment ( Dinesh Dalmia v State[5] ), the Madras High Court held that subjecting an accused to narco analysis is not tantamount to testimony by compulsion. The court said about the accused: "he may be taken to the laboratory for such tests against his will, but the revelation during such tests is quite voluntary." There are two fallacies in this reasoning. First, if narco analysis is all that it is made out to be by the Bangalore FSL, the accused will involuntarily answer questions posed to him during the interview. The second fallacy is that it is incorrect to say that the accused is merely taken to the lab against his will. He is then injected with substances. The breaking of one's silence, at the time it is broken, is always technically `voluntary.' Similarly, it can be argued that after being subject to electric shocks, a subject `quite voluntarily' divulges information. But the act or threat of violence is where the element of coercion is housed. In narco analysis, the drug contained in the syringe is the element of compulsion. The rest is technically voluntary.

2. In Shashi murder case[6], Court allows narco-analysis. Vijaysen Yadav, the main accused in the disappearance and murder case of Faizabad law student Shashi, has gone through polygraph and narco-analysis test from January 12 to 26. Faizabad Chief Judicial Magistrate Shailesh Tiwari permitted the police to conduct the tests at the Central Forensic Laboratory in Bangalore.In his order, the CJM said the tests on Vijaysen will be conducted in judicial custody and prohibited investigating Officer Sharat Chandra Pandey from intervening in any matter during the process of tests. The court also asked him not to accompany Vijaysen to Bangalore.

3. The Bombay High Court recently in a significant verdict in the case of, Ramchandra Reddy and Ors. v. State of Maharashtra[7], upheld the legality of the use of P300 or Brain finger-printing, lie-detector test and the use of truth serum or narco analysis. The court upheld a special court order given by the special court in Pune as mentioned above, allowing the SIT to conduct scientific tests on the accused in the fake stamp paper scam including the main accused, Abdul Karim Telgi. The verdict also said that the evidence procured under the effect of truth serum is also admissible. In the course of the judgment, a distinction was drawn between “statement” (made before a police officer) and “testimony” (made under oath in court). The Judges, Justice Palshikar and Justice Kakade, said that the lie-detector and the brain mapping tests did not involve any “statement” being made and the statement made under narco analysis was not admissible in evidence during trial. The judgment also held that these tests involve “minimal bodily harm”.

4. Narco-analysis of Moninder Singh Pandher[8], had started on January 09, The narco-analysis test of the prime accused in the Noida serial murder case Moninder Singh Pandher was conducted at the Directorate of Forensic Laboratory. Pandher and Koli have been accused of serial killing of women and children in Nithari village, in Noida, Uttar Pradesh. The Noida police had brought Pandher and his servant Surendra Koli to DFS on January 5, 2010. A court in Kerala recently pronounced that no court order is required to do a narco analysis, Disposing of a petition filed by the CBI seeking permission of the court, the magistrate said that filing this type of a plea would only delay the investigation. The court said nobody could stand in the way of the investigating agency conducting tests recognized as effective investigation tools. When the technicalities of the test itself are not clear and uniform, it becomes difficult to accept the stand taken by the court.

Conclusion-
Law is a living process, which changes according to the changes in society, science, ethics and so on. The Legal System should imbibe developments and advances that take place in science as long as they do not violate fundamental legal principles and are for the good of the society. The criminal justice system should be based on just and equitable principles. The issue of using narco analysis test as a tool of interrogation in India has been widely debated. The extent to which it is accepted in our legal system and our society is something, which will be clearer in the near future. Narco Analysis test can be very fruitful in case of hardcore criminals and Supreme court should reconsider its decision of May 5,2010 when it has invalidate the validity of narco analysis test and has declared it as unconstitutional as it violates article 20(3) of the Indian Constitution.

Bibliography-
1. Raghuraman , V. Expert Opinion(ICFAI University Press)2007.
2. Krishnamachari , V. Law of Evidence(S.Gogia and Company)2010.
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[1]Available on www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/pages/SCO_mcdougall130204-57kvisited on 6 September 2010.
[2] (2001) 52 NSWLR 705
[3] Available at http://www.legalserviceindia.com/article/l176-Narco-Analysis.html  visited on 7 September 2010.
[4] Available at http://www.ptinews.com/news/639647_Narco-test--brain-mapping-illegal--says-Apex-Court  visited on 6 September 2010.
[5] (2006) 2 CALLT 68 HC
[6] Available on http://www.expressindia.com/latest-news/shashi-murder-case-vijay-sen-to-undergo-polygraph-narco-tests/251548/ visited on 8 September 2010.
[7] Available on http://www.indiankanoon.org/doc/1943547/ visited on 8 September 2010.
[8] Available on http://www.indiankanoon.org/doc/1310022/ visited on 8 September 2010.

The  author can be reached at: sujay_ilnu@legalserviceindia.com

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